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NC Court of Appeals Warrantless Blood Draw Case

The North Carolina Court of Appeals issued an opinion in a DWI warrantless blood draw case yesterday, State v. McCrary. The court remanded the case to the trial court for additional findings regarding whether exigent circumstances existed.

First, let’s look at the detailed facts that are included in the court’s opinion. A deputy went to a house to investigate a report of suspicious activity. When he arrived, he found the defendant seated in the driver’s seat of a car. The engine was off, and the defendant looked like he was asleep. The deputy tried to get the defendant’s attention but he did not respond. Then the defendant began looking at his upside-down cell phone and still did not acknowledge the deputy. The deputy opened the car door and smelled a strong odor of alcohol. He also saw that the defendant’s eyes were red and glassy. In the car was a bottle of vodka that was almost empty. The deputy gave the defendant an Alcosensor and the results were “so high that [the deputy] determined that there may be a need for medical attention for the defendant.”

The deputy spoke with the owner of the house who said he saw the defendant try to turn his car into the driveway multiple times before he was successful, and in the process thereof, hit landscaped plants and a light. The deputy tried to administer field sobriety tests but the defendant was unable to perform them because he could not stand up. The deputy then arrested the defendant for dwi. At this point, the defendant complained of chest pains and asked to be taken to the hospital so the deputy called EMS.

The deputy decided that if the defendant was released by EMS, he would take the defendant to the sheriff’s office. But if he was taken to the hospital by EMS, the deputy would “obtain a blood sample without a warrant.”

The EMS ended up taking the defendant to the hospital because the defendant was uncooperative during the attempts to examine him. The defendant asked to be taken to the hospital and the deputy instructed EMS to do so. The deputy followed the ambulance in his car, while another officer rode in the ambulance with the defendant.

The defendant arrived at the hospital about an hour after he was arrested but he was still uncooperative when the medical staff attempted to examine him. The defendant was “extremely belligerent, yelling at officers and medical personnel.” “The defendant’s continued uncooperative conduct . . . led [the deputy] to conclude that the defendant was intentionally delaying the investigation.”

Twelve minutes after the defendant arrived at the emergency room, the deputy asked him to submit to a blood test. The defendant refused, and his “belligerent conduct accelerated.” “He issued vile insults and threats to [the deputy] and others, including threatening to spit on [the deputy] and others.”

The defendant was discharged a little more than thirty minutes after he arrived.Three minutes after the defendant was discharged from the hospital, the deputy obtained a blood sample without a warrant and with the assistance of other officers and restraints. This occurred almost three hours after the deputy received the initial call reporting suspicious activity. The deputy then went to the magistrate’s office and arrived about half an hour after obtaining the blood sample.

The defendant filed a motion to dismiss arguing that the warrantless blood draw was unconstitutional. At the hearing for the defendant’s motion, the deputy testified that he called the magistrate before arresting the defendant and after obtaining the blood sample. He also testified that he waited at the magistrate’s office for thirty minutes before meeting with him. Additionally, the deputy testified that, given the circumstances, he concluded that it would have been unreasonable to obtain a warrant for a blood draw. The trial court denied the defendant’s motion, and at trial the defendant was found guilty of DWI.

On appeal, the defendant argued that under the U.S. Supreme Court’s decision in Missouri v. McNeely (2013), the deputy “had ample time and ability to secure a search warrant” during the time in which the defendant was in custody, and therefore, the warrantless blood draw was unconstitutional.

In remanding the case for additional findings on this issue, the court noted that the deputy performed the warrantless blood draw under G.S. 20-139.1(d) which states that

[i]f a person refuses to submit to any test or tests pursuant to this section, any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine.

However, “the taking of blood from a person constitutes a search under both” the state and federal constitutions, so this statutory provision is subject the limitations that the constitutions impose. Typically, “a search warrant must be issued before a blood sample can be obtained, unless probable cause and exigent circumstances exist that would justify a warrantless search,” which is determined by looking at the “totality of the circumstances.”

The court noted two important decisions which examine exigent circumstances in the context of warrantless blood draws. First, State v. Fletcher, which the court of appeals decided in 2010, involved a defendant who “‘failed multiple field sobriety tests’ and was unsuccessful in ‘producing a valid breath sample using the Intoximeter at the police station.’” The officer’s testimony included information about “the distance between the police station and the magistrate’s office, her belief that the magistrate’s office would be busy late on a Saturday night, and her previous experience with both the magistrate’s office and hospital on weekend nights.” The court of appeals held in Fletcher that exigent circumstances existed under these facts to support a warrantless blood draw.

In 2013, the U.S. Supreme Court decided the McNeely case in which it held that “the natural metabolization of alcohol in the bloodstream” is not “a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Instead, there must be additional circumstances present which support a warrantless blood draw. These circumstances may include “delays from the warrant application process” which “arise in the regular course of law enforcement.” The Court emphasized that the determination of exigent circumstance must be made a case-by-case basis, looking at the totality of the circumstances. “Therefore, after the Supreme Court’s decision in McNeely, the question for this Court remains whether, considering the totality of the circumstances, the facts of this case gave rise to an exigency sufficient to justify a warrantless search.”

Although the defendant argued that his case was similar to McNeely, the court noted that McNeely involved a routine DWI stop, a cooperative defendant and no medical treatment. The deputy’s testimony in the defendant’s case also included an estimate as to how long it would take to obtain a warrant, and there was no such testimony in McNeely.

Instead, the court likened the defendant’s case to a court of appeals case from earlier this year, State v. Granger, which involved a DWI defendant who was involved in an accident and needed medical treatment. The officer in Granger was working alone and would have had to wait for another officer to come to the hospital to wait with the defendant. The court determined in that case that exigent circumstances existed to support a warrantless blood draw.

However, although the deputy in McCrary testified about his estimate of the probable delay in obtaining a warrant, the trial court did not make any findings about this or the availability of a magistrate. Therefore, the court remanded the case “to the trial court for additional findings of fact as to the availability of a magistrate and the ‘additional time and uncertainties’ in obtaining a warrant, as well as the ‘other attendant circumstances’ that may support the conclusion of law that exigent circumstances existed.”

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